CA Unpub Decisions

M.S. (Mother) appeals from the termination of her parental rights under Welfare and Institutions Code section 366.26[1]as to her 10-year-old son D.C. and 5-year-old daughter L.C. Mother contends (1) the juvenile court failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.); (2) the juvenile court erred in failing to apply the beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i); and (3) the juvenile court erred in failing to apply the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(B)(v).
We agree that proper ICWA notice was not given. Accordingly, Court reverse conditionally and order a limited remand for ICWA notice compliance. Court reject Mothers remaining contentions.

Defendants and Appellants M.J. (Mother) and C.H. (Father) appeal from the termination of their parental rights under Welfare and Institutions Code section 366.26[1]as to their daughters, 7-year-old A.J. and 9-year-old D.J. On appeal, the parents contend (1) the juvenile court and the San Bernardino County Department of Childrens Services (DCS) failed to comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.); and (2) the matter should be remanded to allow the parents to fully litigate the sibling relationship exception set forth in section 366.26, subdivision (c)(1)(B)(v). Court agree that the notice provisions of ICWA were not adequately complied with and will remand the matter for that limited purpose. Court reject the parents remaining contention.

A jury convicted appellant Joshua Michael Lawrence of two felonies, viz. taking or driving an automobile without permission of the owner (Veh. Code, 10851; count 1) and driving in a direction opposite to traffic flow while willfully evading a pursuing peace officer (Veh. Code, 2800.4; count 3), and four misdemeanors, viz. operating a motor vehicle while fleeing a pursuing peace officers motor vehicle (Veh. Code, 2800.1, subd. (a); count 2), possession of burglary tools (Pen. Code, 466; count 4), resisting a peace officer (Pen. Code, 148, subd. (a)(1); count 5) and hit-and-run driving (Veh. Code, 20002, subd. (a); count 6). The jury also found true allegations that appellant had served three separate prison terms for prior felony offenses (Pen. Code, 667.5, subd. (b)). The court imposed a sentence of five years eight months, consisting of the two-year midterm on count 1, eight months on count 3 and one year each on the three prior prison term enhancements. The court imposed six-month terms on each of the misdemeanors; stayed execution of sentence on count 2 (Pen. Code, 654); but did not specify whether the sentences on counts 4, 5 and 6 would be served concurrently or consecutively.
On appeal, appellant contends (1) the court erred in admitting evidence of an uncharged act, and (2) this court should order that the terms imposed on counts 4, 5 and 6 be served concurrently. We will order the sentencing minute order amended to provide that the sentences on counts 4, 5 and 6 are to run concurrently, and otherwise affirm.

A jury convicted appellant Santiago Larez of sodomy of a person under age 16 by a person over age 21 (Pen. Code, 286, subd. (b)(2)[1]; count 1), committing a lewd and lascivious act against a child age 14 or 15 by a person at least 10 years older ( 288, subd. (c)(1); count 2) and continuous sexual abuse of a child ( 288.5; count 3). The court imposed a prison term of 19 years, consisting the 16-year upper term on count 3 and the three-year upper term on count 1. The court imposed a concurrent three-year upper term on count 2. On appeal, appellant contends (1) the imposition of the upper terms and the consecutive sentences violated his rights under the Fifth, Sixth and, Fourteenth Amendments to the United States Constitution, and (2) the imposition of the upper terms violated the federal and California constitutional prohibitions of ex post facto laws. Court affirm.

D.C. appeals from an order terminating his parental rights (Welf. & Inst. Code, 366.26) to his daughter A.C.[1]A.C. is an Indian child (25 U.S.C. 1903(3)) within the meaning of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.). As a result, before the court could terminate parental rights, it had to make factual findings required by ICWA (25 U.S.C. 1912(d) & (f); Welf. & Inst. Code 361.7, subds. (a) & (c)), in addition to finding the child adoptable under section 366.26. Appellant contends there was insufficient evidence to support one such determination, known as the active efforts finding. (25 U.S.C. 1912(d); Welf. & Inst. Code 361.7, subd. (a).) He also observes the court failed to make the other required finding, namely by evidence beyond a reasonable doubt, that custody of the child by appellant was likely to result in severe emotional or physical damage to the child. (25 U.S.C. 1912(f); Welf. & Inst. Code 361.7, subd. (c).) In his view, these errors were prejudicial. On review, Court affirm.

On January 7, 2009, appellant attempted to appeal from an order filed on December 9, 2008, denying a petition for writ of habeas corpus. On January 9, 2009, this court issued an order informing appellant that this court is considering dismissing the appeal on the ground appellant attempts to appeal from a non-appealable order.
On January 22, 2009 and January 23, 2009, appellant filed letter briefs arguing the merits of the petition, but not addressing the appealability of the petition.

On January 8, 2009, appellant filed a notice of appeal in this court attempting to appeal from an order finding him mentally competent to stand trial within the meaning of Penal Code section 1368. On January 9, 2009, this court issued an order granting appellant leave to address the appealability of the order finding him competent to stand trial. On January 23, 2009, appellant filed a letter brief claiming, without citation to authority, that the December 8, 2008, order finding him competent to stand trial was an appealable order. The appeal is dismissed.

Neil Joshua Amador appeals from his conviction for assault with a deadly weapon with a great bodily injury enhancement. He claims ineffective assistance of counsel because although his trial attorney cross‑examined the victim about inconsistent statements she made at the preliminary hearing, his attorney did not offer the actual transcript of her testimony into evidence. Court reject his argument and affirm his conviction.

Plaintiff Juan Hong sued defendants Regents of the University of California (Regents), Stanley Grant, Yi-San Chang-Yen, Marilyn Armentrout, William Schmitendorf, Patricia Price, Nicolaos Alexopoulos, professors or administrators at the University of California, Irvine (collectively the university), and Kari D. Searles and Richard A. Paul (collectively the lawyers) for breach of his right to privacy based on disclosure of his personnel file. The court struck the complaint under the anti-SLAPP statute (Code of Civil Procedure section 425.16; section 425.16). Plaintiff claims this was error because defendants did not act in furtherance of their rights to free speech and petition and he demonstrated he had a probability of prevailing on the merits. He also contends the court erred in awarding attorney fees to defendants and denying his request for same. Court affirm.

The only issue Cesar Tafoya raises on appeal is that one of the conditions of probation is unconstitutionally vague. The Attorney General concedes.
Pursuant to a negotiated plea bargain, the trial court suspended imposition of sentence and placed Tafoya on three years formal probation, on condition that he serve 180 days in jail. The challenged condition orders him not to associate with anyone disapproved of by his probation officer. The condition does not contain a scienter element, and our Supreme Court has held that such a condition is unconstitutionally vague in the absence of an express requirement of knowledge. (In re Sheena K. (2007) 40 Cal.4th 875, 891.) The reason is that the probation condition must give a probationer fair notice as to what is permitted, and for the court to determine whether the condition has been violated. (Id. at p. 890.)

We appointed counsel to represent Erik Gregory Warren on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against her client, but advised the court no issues were found to argue on his behalf. We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Warren was given 30 days to file a written argument on his own behalf. That period has passed, and we have received no communication from him. Pursuant to Anders v. California (1967) 386 U.S. 738, Warrens appellate counsel suggests the court may wish to review the constitutional validity of the plea, and the denial of additional custody credits. Finding no error, Court affirm the judgment.

K.V. appeals from the juvenile courts order terminating her parental rights to her now 6-year-old son, B.R. (Welf. & Inst. Code, 366.26; all statutory references are to this code.) She contends the court erred in finding the child was adoptable and that the benefit exception under section 366.26, subdivision (c)(1)(B)(i) did not apply. Court disagree and affirm.

Defendant Alexis Simonin appeals from a judgment of conviction entered after a jury found him guilty of five counts of lewd conduct (Pen. Code,[1] 288, subd. (a) - counts 1, 5 (Elizabeth Doe), 10, 12, 13 (Erica Doe), two counts of forcible lewd conduct ( 288, subd. (b)(1) - counts 2, 3 (Elizabeth Doe)), three counts of aggravated sexual assault ( 269 - count 4 (Elizabeth Doe), 9, 11 (Erica Doe)), child endangerment ( 273a, subd. (b) - counts 6 (Elizabeth Doe), 7 (Christopher Doe)), and possession of marijuana (Health & Saf. Code, 11357, subd. (b) - count 8). The jury also found that there had been more than one victim within the meaning of section 667.61, subdivisions (b) and (e) in connection with counts 1, 2, 3, 5, 10, 12, and 13. The trial court sentenced defendant to 105 years to life in state prison. On appeal, defendant contends that counts 10, 12, and 13 are barred by the statute of limitations. We find no error and affirm the judgment.

Defendant Carlos Jessie Ramirez pleaded no contest to battery with the infliction of serious bodily injury. (Pen. Code, 242, 243, subd. (d).) He also admitted that he had committed three prior strike convictions. (Pen. Code, 667, subds. (b) - (i), 1170.12.) After the trial court denied defendants motion to dismiss the prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, it sentenced defendant to state prison for an indeterminate term of 25 years to life. This court granted defendants motion to file a late notice of appeal. The judgment is affirmed.